OPEN UNIVERSITY JANUARY 28, 2007
by David Bromwich Alberto Gonzales in testimony several days ago before the Senate Judiciary Committee denied that the Constitution gave American citizens the right to habeas corpus. The story was overlooked by most of the mainstream news outlets, perhaps on the theory that no exorbitant statement by Gonzales is news any longer. But this was an astonisher. It left Arlen Specter startled enough to warn the justice department that it seemed to be crossing one more indelible line. The exchange ought to be more widely known, since what members of this administration say "experimentally," out of the side of their mouths, often turns out to refer to what they are already putting into practice. They never let up, they are always a step ahead.
"The privilege of the writ of habeas corpus," in the words of the Constitution, "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it" (Article I, Section 9). It is a right, and not to be suspended except in the specified cases. The wording scarcely admits of intelligent argument. Yet Gonzales had a reservation. The Constitution, he wanted the senators to know, does not actually say "American citizens have the right to habeas corpus." It only says that the right shall not be suspended. Or, as he shamelessly construed it, "there is no express grant of habeas corpus in the Constitution." Note the weasel-word "express": the giving or granting of the positive right is not in the text; the text merely forbids any negation of the right. The honoring of the privilege of the writ of habeas corpus is merely entailed by the logical properties of the English language and the entire history of legal precedent on habeas corpus. The absurdity of the Gonzales reservation is transparent; but why would he float such a trial balloon unless the Justice Department is up to something? Asked to elaborate by Senator Arlen Specter, the attorney general replied: "the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas corpus. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...."
A constitutional scholar observed that, in the same way, the Constitution forbids the impairment of obligations of contract (see Article I, section 10), but it does not explicitly say that every individual's contract shall not be impaired. A fair comparison for detecting the sophistry, but a comparison that
doubtless Gonzales would reject. Habeas corpus is about liberty. Contract is about property. And of the great political goods, life, liberty, and property, to which the United States was dedicated at its founding, the Republican party of 2007 is dedicated to the preservation of property above all. The larger game in view is of course the theory of the "unitary executive." Bruce Fein calls the disposition against habeas corpus entirely in keeping with the Cheney-Bush "idea that during conflicts, the three branches of government collapse into one, and it is the president."
In an impressive and chilling interview, Jeremy Scahill spoke last week to Amy Goodman about his forthcoming book on Blackwater USA. One may have thought all the links were by now exposed that connect, for example, the Iraq war with the neoconservative strategists at the American Enterprise Institute and the Project for the New American Century. But that was only for the design and the selling of the war. Cahill brings out a connection just as close between the techniques used to prosecute the war--while keeping much of its conduct in the shadows and off the books--and the invention and expansion of Blackwater USA. Euphemistically called a "security force" by the journalists who mention it at all, this mercenary army has come into the news of Iraq irrepressibly on a few occasions. The first was the lynching of the four "civilian contractors" in April 2004 in Fallujah--the grisly incident that triggered the siege and the street-to-street devastation of that city by the American forces. The most recent was the death of five people on January 23 in the crash of a Blackwater helicopter in Baghdad.
Blackwater grew out of an exploration launched by Dick Cheney when he was still secretary of defense. Cheney commissioned from Halliburton a study of "how to privatize the military bureaucracy." Soon after, Cheney himself became the CEO of Halliburton; and when he returned to government, the Iraq war gave him the chance to reduce to a practice the lessons of that study. Scahill leaves the reader to infer how many of the necessary phone calls Cheney today is thus in a position to make, to relevant officers in the defense department and in the two corporations at the heart of the war effort. He himself laid down the conditions for creating one of the corporations, led the second for many years, and has had a hand in rebuilding the government department twice over.
Some facts and figures. Blackwater was founded by ex-Navy Seals and other former fighters in the special forces, and it is located near the Great Dismal Swamp of North Carolina. It is headed by Erik Prince, a far-right Christian activist and ex-Navy Seal who made large contributions to Republican causes in
the 1990s and is a significant donor to President Bush. Blackwater has 2,300 men actively deployed in various countries. It has 20,000 soldiers prepared to fight when paid for, and "the world's largest private military base" from which to launch them. In the war in Iraq, most of Blackwater's actions are unreported, and its casualties are not counted among the military dead. Among its present employees are Cofer Black, the planner of the extraordinary rendition program, and Joseph Schmitz, the former Pentagon inspector general. Fred Fielding was its lawyer until he was summoned by the White House to replace Harriet Miers as the personal lawyer for President Bush. Its current lawyer of record is Kenneth Starr. Not without reason does Scahill refer to Blackwater as "the Praetorian Guard" for this administration's present and future wars. For a president who has taxed beyond precedent the usual prerogatives of the commander-in-chief of a standing army, it must give uncommon assurance to have at his absolute command, as well, a private army whose reach is enormous and whose operations are secret.
The game of analogies and parallels is the ignis fatuus of history-writing, but those who play it, instead of debating whether G.W. Bush is the worst or the second-worst president, ought to recognize that comparisons within the history of constitutional democracy are beside the point. To catch a substantial clue to the man, to find the real family resemblance, one must go back to a time before there were presidents, before the United States existed. The following sayings of George III are all taken from Richard Pares's
excellent King George III and the Politicians: "Firmness is the characteristic of an Englishman." "I always act from conviction." "I know I am doing my duty and therefore can never wish to retract." In spite of England's extensive reliance on mercenary soldiers, the American revolutionary war dragged on unnecessarily two years beyond the moment of all-but-admitted failure--because George III believed himself the sole legitimate maker of decisions, and the disaster he had brought on his country was less vivid to him than the mortification of conceding the extent of his errors and miscalculations. His captive prime minister, Lord North, at one point summoned sufficient courage to tell him: "The Parliament have now altered their sentiments, and as their sentiments whether just or erroneous, must ultimately prevail, Your Majesty having persevered, as long as possible, in what you thought right, can lose no honour if you yield at length." A measure of how far we have slid backward is that one cannot imagine any adviser of President Bush having the nerve to speak so candidly. He, or she, would be sacked immediately.